BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 1253
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          SENATE THIRD READING
          SB 1253 (Tony Strickland)
          As Amended  April 27, 2010
          Majority vote 

           SENATE VOTE  :34-0  
           
           PUBLIC SAFETY       5-0                                         
           
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          |Ayes:|Hagman, Gilmore, Hill,    |     |                          |
          |     |Portantino, Skinner       |     |                          |
          |     |                          |     |                          |
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           SUMMARY  :  Prohibits a person convicted of lewd or lascivious  
          acts upon or with the body of a child, or of continuous sexual  
          abuse of a child, from being placed or residing within one-half  
          mile of the child victim's residence for the duration of his or  
          her probation term unless the court, on the record, states its  
          reasons for finding that this residency restriction would not  
          serve the best interest of the victim.

           EXISTING LAW  :

          1)Provides that probation shall not be granted to, nor shall the  
            execution or imposition of sentence be suspended for, any of  
            the following persons:

             a)   A person who is convicted of violating Penal Code  
               Section 288 (lewd or lascivious act) or 288.5 (continuous  
               sexual abuse of a child) when the act is committed by the  
               use of force, violence, duress, menace, or fear of  
               immediate and unlawful bodily injury on the victim or  
               another person;

             b)   A person who caused bodily injury on the child victim in  
               committing a violation of Penal Code Section 288 or 288.5;

             c)   A person who is convicted of a violation of Penal Code  
               Section 288 or 288.5 and who was a stranger to the child  
               victim or befriended the child victim for the purpose of  
               committing an act in violation of Penal Code Section 288 or  
               288.5, unless the defendant honestly and reasonably  
               believed the victim was 14 years of age or older;








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             d)   A person who used a weapon during the commission of a  
               violation of Penal Code Section 288 or 288.5;

             e)   A person who is convicted of committing a violation of  
               Section 288 or 288.5 and who has been previously convicted  
               of a violation of rape, rape of a spouse, rape or  
               penetration of genital or anal openings by a foreign  
               object, inveiglement or enticement of an unmarried female  
               under 18 for purposes of prostitution, unlawful sexual  
               intercourse when consent is procured by false or fraudulent  
               representation with intent to create fear, abduction of a  
               person under 18 for the purpose of prostitution, incest,  
               sodomy, lewd or lascivious act, continuous sexual abuse of  
               a child, oral copulation, or forcible acts of sexual  
               penetration, or of assaulting another person with intent to  
               commit a crime with the intent to commit mayhem, rape,  
               sodomy, oral copulation, or who has been previously  
               convicted in another state of an offense which, if  
               committed or attempted in this state, would constitute an  
               offense enumerated in this paragraph;

             f)   A person who violated Penal Code Section 288 or 288.5  
               while kidnapping the child victim;

             g)   A person who is convicted of committing a violation of  
               Penal Code Section 288 or 288.5 against more than one  
               victim;

             h)   A person who, in violating Penal Code Section 288 or  
               288.5, has substantial sexual conduct with a victim who is  
               under 14 years of age; or,

             i)   A person who, in violating Penal Code Section 288 or  
               288.5, used obscene matter, or matter depicting sexual  
               conduct.

          2)States that if a person is convicted of a violation of Penal  
            Code Section 288 or 288.5, and the factors listed in the  
            aforementioned subdivision (a) are not pled or proven,  
            probation may be granted only if the following terms and  
            conditions are met:

             a)   If the defendant is a member of the victim's household,  








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               the court finds that probation is in the best interest of  
               the child victim;

             b)   The court finds that rehabilitation of the defendant is  
               feasible and that the defendant is amenable to undergoing  
               treatment, and the defendant is placed in a recognized  
               treatment program designed to deal with child molestation  
               immediately after the grant of probation or the suspension  
               of execution or imposition of sentence;

             c)   If the defendant is a member of the victim's household,  
               probation shall not be granted unless the defendant is  
               removed from the household of the victim until the court  
               determines that the best interests of the victim would be  
               served by his or her return. While removed from the  
               household, the court shall prohibit contact by the  
               defendant with the victim, with the exception that the  
               court may permit supervised contact, upon the request of  
               the director of the court-ordered supervised treatment  
               program, and with the agreement of the victim and the  
               victim's parent or legal guardian, other than the  
               defendant; and,

             d)   The court finds that there is no threat of physical harm  
               to the victim if probation is granted.

          3)Mandates notwithstanding any other provision of law, an inmate  
            who is released on parole shall not be returned to a location  
            within 35 miles of the actual residence of a victim of, or a  
            witness to, a violent felony or a felony in which the  
            defendant inflicts great bodily injury on any person other  
            than an accomplice that has been charged and, if the victim or  
            witness has requested additional distance in the placement of  
            the inmate on parole, and if the Board of Parole Hearings or  
            the Department of Corrections and Rehabilitation (CDCR) finds  
            that there is a need to protect the life, safety, or  
            well-being of a victim or witness.  

          4)Requires an inmate who is released on parole for a violation  
            of Penal Code Section 288 or 288.5 whom the CDCR determines  
            poses a high risk to the public shall not be placed or reside,  
            for the duration of his or her parole, within one-half mile of  
            any public or private school including any or all of  
            Kindergarten and Grades 1 to 12, inclusive.  








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          5)Requires any inmate convicted of a felony registerable sex  
            offense and who is committed to prison and released on parole  
            shall be monitored by global positioning system for the term  
            of his or her parole.  

          6)States that any person who commits lewd and lascivious acts  
            upon the body, or any part thereof, of a child under the age  
            of 14 years, with the intent of arousing, appealing to, or  
            gratifying the lust, passions, or sexual desires of that  
            person or the child is punishable by imprisonment in the state  
            prison for three, six or eight years.  

          7)Defines "continuous sexual abuse of a child" as three or more  
            acts of substantial sexual conduct with a child under the age  
            of 14 years, or three or more acts of lewd and lascivious  
            conduct with a child under the age of 14 years, over a period  
            of not less than three months in duration.  Continuous sexual  
            abuse of a child is punishable by imprisonment in the state  
            prison for 6, 12, or 16 years.  

          8)Provides for the "one-strike" sex crime sentencing law that  
            provides sentences of 15-years or 25-years-to-life in certain  
            sex crimes if specified circumstances in aggravation are found  
            to be true.  

          9)Specifies that the qualifying sex crimes under the one-strike  
            sex law are punishable by imprisonment in the state prison for  
            life, and the defendant shall not be eligible for release on  
            parole for 15 years or 25 years, as specified.  These crimes  
            are forcible rape, forcible spousal rape, rape by a foreign  
            object, forcible sodomy, forcible oral copulation, lewd and  
            lascivious acts with a child under the age of 14 accomplished  
            by force or duress, and lewd and lascivious acts with a child  
            under the age of 14 accomplished by other than force or duress  
            where the defendant is not eligible for probation.  [Penal  
            Code Section 667.61(a) and (c).]

           FISCAL EFFECT  :  None

           COMMENTS  :  According to the author of this bill, "Child or  
          continuous sexual abuse of a child from being granted probation.  
           If the defendant is eligible for probation, then probation is  
          granted only if certain terms and conditions are met.  These  








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          terms and conditions do not currently prohibit the defendant  
          from living near their child victim.

          "If this same defendant is convicted and granted parole, current  
          law does allow for a residence restriction to be imposed.  An  
          offender, who is found to be a high risk by CDCR, shall not be  
          placed or reside within one-half mile of any school.

          "These children have suffered unimaginable harm, regardless of  
          whether the offender is convicted of a misdemeanor or a felony.   
          The children should not be further traumatized and forced to  
          live near their attacker.  We should do everything possible to  
          ensure the safety of the victim and restore their sense of  
          security in the neighborhood."

          Please see the policy committee for a full discussion of this  
          bill.


           Analysis Prepared by  :    Nicole J. Hanson / PUB. S. / (916)  
          319-3744                                               FN:  
          0004866